Where does federal plenary power over immigration come from? For a long
time now, scholars have pinpointed the definitive starting point in the
1889 Supreme Court case of Chae Chan Ping v. U.S. (aka The Chinese Exclusion Case),
which announced that immigration control was “an incident of
sovereignty” and thus a matter for Congressional—not state or
judicial—power. In an excellent new article, historian Hidetaka Hirota
challenges this basic assumption. He argues convincingly that federal
plenary power arose not only from the Court’s reading of international
and constitutional law, but also from a long history of state practices
of migrant policing and control. The federal government took political,
administrative, and procedural cues from the state immigration regimes
that predated Chinese Exclusion, particularly those in the influential
states of New York and Massachusetts.